United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 22, 2011*

Decided November 30, 2011

Before

   RICHARD A. POSNER, Circuit Judge

   ILANA DIAMOND ROVNER, Circuit Judge

   DAVID F. HAMILTON, Circuit Judge

   

No. 11‐1111

SERGEY V. ANDREYEV,

Plaintiff‐Appellant,

v.

BRIAN KJORLIE, et al.,

Defendants‐Appellees.                 

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09‐cv‐651‐slc

Stephen L. Crocker,

Magistrate Judge.

O R D E R

Sergey Andreyev was a pretrial detainee at the Columbia County Jail in Wisconsin

for 10 months in early 2006. He claims in this suit under 42 U.S.C. § 1983 that the 16

defendants, all guards at the jail, were deliberately indifferent to his periodontal disease

because collectively they failed to respond favorably to 31 oral requests for a toothbrush or

toothpaste during the first 31⁄2 months of his detention. A magistrate judge, presiding by

consent, granted summary judgment for the guards because the undisputed evidence

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).
No. 11‐1111 Page 2

establishes that none of them was aware of Andreyev’s condition and, moreover, their

actions could not have caused harm. We affirm the judgment.

Andreyev had known about his periodontal disease since 1996 when it was

diagnosed as severe. The condition affects the periodontium, the tissue surrounding the

roots of the teeth and the part of the jawbone where they are anchored. J.E. SCHMIDT, 4

ATTORNEYS’ DICTIONARY OF MEDICINE AND WORD FINDER, P‐175–76 (2011). Andreyev’s

symptoms included constant pain, bleeding gums, tooth decay, and bone loss. By January

2005, almost a year before he entered the jail, Andreyev’s condition had deteriorated to the

point that his dentist, Dr. Robert Savage, had recommended immediate extraction of his

molars and preparation for a full upper denture. Later that same year Andreyev sought

approval from his insurance company for full upper and lower dentures, which would have

required extracting all of his teeth. Andreyev chose to delay this work, and it remained

undone when he entered the jail on December 31, 2005. When he was detained Andreyev

never informed any jail official about his periodontal disease (the closest he got was telling

the intake officer that he had “bad teeth”). And though he submitted eight written requests

to see a nurse or doctor, he never once requested dental care while at the jail. Andreyev left

the jail in October 2006 and underwent full‐extraction surgery in November 2007.

At summary judgment the defendants submitted an affidavit from a dental

consultant, Dr. Gary Conger, who opined that not brushing at all for the entire 31⁄2 months

would not have worsened Andreyev’s disease or caused him to lose more teeth. By the time

Andreyev entered the jail, Dr. Conger explained, his teeth could not be salvaged. Andreyev

did not introduce evidence contradicting Dr. Conger’s opinion. Rather, the only dispute

between the parties was whether the defendants had deliberately refused Andreyev’s

requests for a toothbrush or toothpaste.

When he first entered the jail, Andreyev had been placed on suicide watch with a

“no sharps restriction,” which meant that he could not retain a toothbrush in his cell and

had to be monitored while brushing. The jail’s policy, however, is to provide a toothbrush

and toothpaste to restricted detainees upon request. At his deposition Andreyev maintained

that the defendants had denied a total of 31 such requests during his first 31⁄2 months of

pretrial confinement. (Andreyev says these oral requests were made on 31 different days,

but he does not say that he never received a toothbrush or toothpaste from someone else on a

day that one of the defendant guards turned him down. But giving Andreyev the benefit of

the doubt, we assume that he went without brushing for a total of 31 days during his first

31⁄2 months at the jail.) According to Andreyev, on the occasions when a defendant failed to

accede to his request for a toothbrush or toothpaste, the guard had said something like, “Let

me talk to a sergeant,” or, “I’ll be right back,” but never followed up.
No. 11‐1111 Page 3

In granting summary judgment for the defendants, the magistrate judge noted that

undisputed evidence established that Andreyev’s periodontal disease already had

progressed to the point that not brushing his teeth could not have caused additional harm.

Moreover, the court reasoned, Andreyev lacked evidence that the defendants, most of

whom allegedly refused him a toothbrush just once or twice, had been indifferent to his

dental needs. The court explained that Andreyev had never told the defendants about his

periodontal disease or requested dental care beyond a toothbrush and toothpaste. And, the

court added, knowledge of a serious medical need could not be inferred from Andreyev’s

repeated requests for a toothbrush. Repeated requests are normal for prisoners who cannot

keep one in the cell, the magistrate judge reasoned, and there was no evidence that any

defendant was aware of the total number of unmet requests.1

On appeal Andreyev argues that the total number of unmet requests for a toothbrush

evidences that he was being ignored. This contention misses a key point: Andreyev never

disputed Dr. Conger’s opinion that failing to brush his teeth did not exacerbate his

periodontal disease or cause the need for full‐extraction surgery. Causation is an element of

§ 1983, which creates a species of tort liability. Roe v. Elyea, 631 F.3d 843, 863–64 (7th Cir.

2011). Moreover, Andreyev needed to show that the guards knew of a substantial risk of

harm to him and disregarded that risk. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);

Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006). Andreyev did not present evidence

satisfying this standard. This is not a case where a single jailer denied a prisoner a

toothbrush and toothpaste 15 times, in which case a reasonable trier of fact might conclude

that the jailer was on notice of the prisoner’s lack of toothpaste. See Board v. Farnham, 394

F.3d 469, 481 (7th Cir. 2005). No single defendant refused Andreyev a toothbrush more than

four times, and most of the defendants turned him down no more than once or twice.

Responding to a few requests for a toothbrush and toothpaste by saying, “I’ll be back,” or,

“Let me talk to a sergeant,”and then not coming back is not evidence of the intentional acts

or recklessness required to prove an Eighth Amendment violation. See Dale v. Poston, 548

F.3d 563, 571 (7th Cir. 2008); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).

AFFIRMED.

1

We are satisfied that all parties consented to proceed before the magistrate judge

under 28 U.S.C. § 636(c). Plaintiff consented in writing, and defendants’ counsel had notice

of the right to refuse to consent and then consented in writing on behalf of all defendants.

All parties proceeded to litigate the case without objection before the magistrate judge. See

Roell v. Withrow, 538 U.S. 580, 590 (2003); Stevo v. Frasor, ‐‐‐ F.3d ‐‐‐, ‐‐‐ (7th Cir. Nov. 17,

2011).